Judgment :

Leave granted.

This appeal is directed against a judgment and order dated 4.6.2007 passed by the learned Single Judge of the High Court Gauhati in R.S.A No. 169/2006 preferred by the appellant herein, whereby and whereunder the judgment and order dated 18.4.2006 passed by a Civil Judge, Senior Division, was affirmed.

The basic fact of the matter is not in dispute.

One Nakho Ram was the owner of the suit property. He had two sons, namely, Rajiv Lochan Roy and Kamjit Roy. The property in the suit admeasured 16 Bighas 4 Kathas.

Rajiv Lochan executed two deeds of sale in 1982, in respect of about 4 Bighas of land, inter alia, contending that he had half share in the said property. It is not in dispute that the family of Nakho Ram was governed by Dayabhaga School of Hindu Law. It is furthermore not in dispute that in 1982, Nakho Ram was alive and he expired only in the year 1990. Appellant, however, claimed that in terms of the aforementioned deeds of sale executed by Rajiv Lochan in the year 1982, he had remained in possession of the vested property since the date of purchase.

It is, furthermore, not in dispute that in the year 1990, a proceeding under Section 107 as also Section 145 of the Code of Criminal Procedure was initiated and therein, Respondent No.1 herein was put in possession of the property.

Respondent No.1 filed a suit in the year 1991 for declaration of his title, confirmation of possession as also a decree for setting aside two deeds of sale executed by Rajiv Lochan in the year 1982. The said suit was dismissed by the learned Trial Judge, inter alia holding that the legal representatives of the proforma respondents having not been brought on record, the suit had abated. It was furthermore held that the defendant-appellant acquired title to the suit property by adverse possession. The suit so far as it related to setting aside the aforementioned deeds of sale was, however, held to be barred by limitation.

The First Appellate Court, however, on an appeal preferred by the contesting respondents, reversed the said findings of the Trial Court opining that as the defendant-appellant was a party to the fraud perpetrated by Rajiv Lochan in so far as he was, at all material times, aware that in the year 1990, Nakho Ram was alive and not dead, he cannot take benefit of the said deeds of sale and the same were void ab initio. The High Court, as noticed hereinbefore, has affirmed the said view.

Learned counsel appearing on behalf of the appellant would contend that the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration the provisions of Section 43 of the Transfer of Property Act, in terms whereof, having regard to the fact that Rajiv Lochan had also died in the year 1992, the doctrine of feeding the estoppel became applicable to the facts of the present case.

A finding of fact has been arrived at by the First Appellate Court that the appellant was also a party to the fraud inasmuch as he was all along aware that on the date of execution of the deeds of sale, Nakho Ram was alive.

Indisputably, therefore, the appellant entered into the aforementioned transaction knowing fully well that Nakho Ram was alive in the year 1992, Rajiv Lochan could not have executed the deeds of sale and only with a view to obviate the legal difficulties, Nakho Ram was shown to have expired.

Appellant was furthermore aware that although Rajiv Lochan did not inherit the property of Nakho Ram, he executed the aforementioned deeds of sale.

Rajiv Lochan, thus, having no title to the property, by said deeds of sale or otherwise, evidently could not have derived any title thereover.

Section 43 of the Transfer of Property Act reads as under:

"43. Transfer by unauthorised person who subsequently acquires interest in property transferred.-Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such p